The Travel Ban: Part of a Broad National Security Exceptionalism in U.S. Law

As various scholars have noted, the Supreme Court’s Trump v. Hawaii decision last week to uphold a law that many experts call “the Muslim Ban” is shocking in its analysis. A majority of the court concluded that, despite substantial evidence of discriminatory intent by President Donald Trump and those who formulated the law’s various versions, the resulting executive order does not violate the First Amendment’s Establishment Clause barring discrimination based on religion. The court held that the ban could be overturned only if it lacked “any purpose other than a ‘bare … desire to harm a politically unpopular group.’”

This standard is a “radical” departure from Supreme Court precedent, as Professors Ryan Goodman, Cristina Rodriguez, and Adam Cox explain on Just Security. But they suggest, justifiably on some counts, that the decision likely will have limited impact due to certain unusual circumstances of the case. Yet, the majority opinion fits into a broad pattern of Supreme Court and lower federal court jurisprudence, in which national security has become the basis for radical departures from legal precedent in areas ranging from criminal and constitutional law to torts.

Goodman and his co-authors note that the Muslim Ban decision stands for the proposition that, “even if we know that an immigration policy was motivated by blatant official animus against a religion, the policy should be sustained as long as the government proffers some rational national security basis for it.” In the domestic, non-immigration context, however, a very different standard applies. In these circumstances, “a policy that the President has defended with clear disdain for Muslims and Islam would almost certainly be subject to exacting scrutiny, even if neutral on its face, because of the chief decision-maker’s discriminatory intent.”

As they perceptively argue, in departing from this standard of review, the Supreme Court, for the first time, has “upheld an immigration policy that openly discriminated on the basis of race or religion during a period of constitutional history when such a policy would have been clearly unconstitutional in the domestic context.”

Goodman, Rodriguez, and Cox cautiously sound a note of optimism, however. As they argue, the court’s decision likely is limited to the case’s unique circumstances and should not have broad application to immigration rights. First, they suggest that the sort of pervasive evidence of discriminatory intent that was present in Trump v. Hawaii simply isn’t available in most cases involving immigration (or other) laws that are neutral on their face. Second, they argue that, while this case involved “immigration policy,” it is different and distinct from matters related to the rights of noncitizens under immigration law.

These are compelling reasons to hope that, indeed, the court’s decision will have a circumscribed impact on immigration law, writ large. Nevertheless, it is also important to understand how the majority opinion fits into a broader pattern of courts taking it upon themselves to consider national security in their decision-making.

`Terrorism Exceptionalism’

In domestic criminal law, scholars have chronicled the rise of a “terrorism exceptionalism” that has toppled traditional investigatory practices, notions of liability, due process, and incarceration norms. As noted by experts like Professor Wadie Said at the University of South Carolina School of Law, these transformations have involved the rampant use of spying and informant-reliance on laws such as the criminal material-support statutes that criminalize activities that otherwise are not dangerous or directly linked to the commission of terrorist violence; and the application of terrorism-specific sentencing enhancements that mandate exceedingly long prison terms for defendants.

On the constitutional side, scholars have shown how the criminal material-support statutes, especially 18 U.S.C. § 2339B, raise significant First Amendment concerns. In particular, Professor David Cole at Georgetown Law and others have honed in on the provision’s impermissibly sweeping definition of “material support,” and highlighted the threat that definition poses to paradigmatic areas of free speech. Others have underscored the criminal material-support laws’ negative impact on religious freedom protections. Still others have raised alarms about the harm to Fourth Amendment privacy rights created by the “war on terror.”

As I have discussed, national security also is having an exceptional impact on tort law. This is most clear in the jurisprudence on the civil right of action under the Antiterrorism Act, an intentional tort statute allowing U.S. citizens to sue third parties that have provided material support to terrorist groups or activities.

As the case law on this statute has developed since 9/11, courts increasingly eviscerated long-standing tort norms relating to knowledge and causation to favor plaintiffs. They have done so despite clear legislative history directing that the statute be treated like any other traditional tort. Decisions that clearly ignore this congressional mandate indicate that the courts have been implicitly — and sometimes explicitly — influenced by national security concerns, including the need to confront terrorism’s “unique” dangers.

The extent to which national security has impacted these areas of law is arguably even more troubling than the Supreme Court’s Muslim Ban decision, as these other cases in no way directly implicate the executive’s branch’s authority over foreign policy and national security.

Reshaping Immigration Policy

Finally, while the Muslim Ban decision may have limited impact on immigration rights, the case is part of yet another trend of “terrorism exceptionalism,” this time within immigration policy.

Scholars, including Shoba Sivaprasad Wadhia at Penn State Law have described, for example, how post-9/11 counterterrorism objectives have reshaped immigration policy. Though terrorism concerns played a role in immigration before 9/11, they had a relatively minimal impact compared with the near-absolute degree to which they have subordinated immigration law and policy since those attacks.

Indeed, there has been a steep rise in ethnic and religious profiling in immigration law enforcement and an increase in restrictive immigration practices, all of which have disproportionally impacted individuals of Middle Eastern, South Asian, and/or Muslim background. Indeed, some of these policies, like the National Security Entry-Exit Registration System (NSEERS), were even cited in Trump v. Hawaii.

What the Muslim Ban case represents, then, is an increasing judicial tendency since 9/11 to both privilege national security within immigration policy, and subordinate legal norms to national security interests, across a wide-range of legal issues, domestic and foreign. To truly appreciate the weight of the Muslim Ban decision, it is critical to place it within this broader context.

Courts are not only deferring to the executive branch in areas where it has broad authority; they also are often treating national security, in and of itself, as an overriding policy concern relevant to judicial consideration of bread-and-butter legal concepts. 

About the Author(s)

Maryam Jamshidi

Acting Assistant Professor of Lawyering at NYU School of Law Follow her on Twitter (@MsJamshidi).